John Suggs v. J. Edwin Lavallee, Superintendent, Clinton State Correctional Institution

1092 record, reflected in this I

jоyment of life2 majority how the find it hard to understand SUGGS, Appellee, John $170,000 jury verdict “is say can judicial as to shock the high irrational or so LaVALLEE, Superintendent, J. Edwin conscience,” Batchkowsky v. Penn Central Clinton State Correctional Co., 1121, (2d 1975). In 525 F.2d Cir. Institution, Appellant. Batchkowsky, we reiterated this test for appellate the invocation of remittitur after 137, No. Docket 77-2053. the trial judge has denied similar motion. United Court Appeals, States The reluctance to interfere with both the Second Circuit. guarantee Seventh Amendment and the ex- bench, perience of the trial which that test Argued 2, Sept. 1977. reflects,3 especially is relevant here where 27, Decided Jan. 1978. Weinstein, Judge viewing after all the evi- dence, stated that would have sustained $200,000.4 up

a verdict of The jury ver-

dict is still within the boundaries of see,

cases, g., e. Chiarello v. Domenico Bus

Service, Inc., (2d 1976).5 542 F.2d 883 Cir.

Moreover, we must be aware that whether $85,000

plaintiff’s recovery $170,000, or subject

either sum will be ravages

inflation, about jury which the was not circumstances,

instructed.6 Under all the

judicial “shock” at the larger figure but not the former draws line whose basis sum,

eludes me. In I would affirm

amount of jury verdict. courts, including circuit, great pain, 2. The federal this suffered and I think the verdict was long recognized enjoyment life, just.” loss of tennis, ski, sail, inability play fully such as enjoy activities, compensable homelife is a ele Chiarello, Lumbard, opinion by Judge 5. in an damages. ment of See Lebrecht v. Bethlehem $669,910, recovery we sustained a of which Corp., (2d Steel 402 F.2d 591-92 Cir. $275,548 represented pain suffering 1968); Co., Downie v. United States Lines being value, discounted for future 542 F.2d at (3d 1966) (en banc); F.2d 347 n.7 Cir. case, plaintiff plaintiff 886 n.4. The in that like Co., Steamship Hanson v. Reiss O’Gee, primarily suffered from a herniated (D.Del. 1960). Moreover, plaintiff only disc. in Chiarello 32-year expectancy had a life whereas Batchkowsky Co., supra, v. Penn Central plaintiff 49.9-year expectancy. here had a life Note, F.2d at 1124. See also Remittitur Prac- Courts, tice in the Federal 76 Colum.L.Rev. charged jury 6. Whether to have so is an (1976), criticizing appellate 310-11 remitti- See, increasingly disputed g., issue. e. United pointing jury tur and out that be- “[a] verdict English, (9th States v. 521 F.2d 73-76 Cir. thing appel- comes tenuous when cloistered Note, 1975); Inflation, Prospec see also Future judges tamper late feel free to with it.” Damages, Courts, tive and the Circuit 63 Va.L. (1977). Rev. 122-23 Weinstein further observed that “[t]he very injuries woman has suffered serious

Henry Steinglass, J. Atty., Asst. Dist. County, New York New City (Robert York Morgenthau, M. Atty., Dist. Nеw York County, Zimroth, L. Atty., Peter Asst. Dist. City, counsel), New York for appellant. Parson, Jr., Judson A. New City York (Christopher Kende, B. New York City, of counsel), appellee. for KAUFMAN, Before Judge, Chief and MESKILL, Judges. OAKES and Circuit OAKES, Judge: Circuit presents pat- This case an all too familiar societal, tern breakdown—of institution- al, legal adequately medical and failure cope person. Perhaps a inability to solve an problem insoluble is a de- better scription, since the intentions of those at- tempting to cope psychiatrists, psycholo- — officers, gists, judges correction law- yers no case been untoward. —have Suggses begin The John of life with an utterly crippling Early home environment. they signs unusual, exhibit bizarre behavior, and even destructive often the experiences. result of traumatic Society, motivation, with humanitarian institution- them, protect ostensibly alizes itself them, more probably because no alternative depth exists. The of the mental/emotional proves too problem great, the number Suggses large, too resources for positive few. assistance too When released so- into ciety, is probable, criminal behavior merely possible. rape, mug- A robbery, ging or worse ensues. legal system

The jurisdic- then assumes over problem. rights tion Somehow the protected, individual must be while danger society Ques- is removed. of competency tions to stand trial and of responsibility psychiat- criminal The arise. experts the judges ric who must rule disagree; psychiatry both and law are in- sufficiently advanced to attain the scientific necessary precision ques- to resolve these Yet have to be Af- tions. decisions made. period years just ter the case is as beginning. insoluble as it was in the posture robbery The of John case before after a discussion which evidently may briefly history judge us be rather stated. Its satisfied the pleas’ voluntariness. complex. psychiatric colloquy continued, Its back- As the is more however, is, appellee’s unusual responses Its resolution ground extensive. court, prompted the sponte, sua to order might suspect, hardly free frоm doubt. one psychiatric However, examination. I. POSTURE court reject did not or otherwise mention accepted immediately People of the State of New York preceding the commitment order. par- judgment of the appeal from a United ties differ on whether Justice Nunez or- for the States District Court Southern Dis- dered the solely examination purposes York, Duffy, trict of New Kevin Thomas of sentencing, or to determine competency Judge, vacating Suggs’ rape convictions for as well. robbery granting a writ of habeas A second group corpus sixty days to issue within unless examina- performed tions by Drs. Martin Lubin and Suggs permitted replead in state Laszlo Kadar between September 19 and Suggs court1 on the basis that was never 21, 1968, October at Bellevue Psychiatric colloquy afforded the on voluntariness man- Hospital (Bellevue), pursuant to Justice Nu- Alabama, 238, by Boykin dated v. 395 U.S. order, nez’ found incompetent 1709, (1969), 89 23 L.Ed.2d 274 S.Ct. at a stand trial. On the basis reports, of these competent time when he was trial. stand and without knowledge of the Messinger 877, F.Supp. (S.D.N.Y.1977); 430 884 390 report, appellee was incompe- determined F.Supp. (S.D.N.Y.), 383 vacated on other tent Justice Samuel Gold on November (2d grounds, 1975). 523 F.2d 539 Cir. 6,1968, and was competent committed until judgment was rendered after an evidentia- to Matteawan Hospital (Matteawan) State hearing Judge in which ry Duffy found 15, on November 1968. Suggs incompetent at the time of his guilty When pleas. F.Supp. 877. the authorities determined that ap- trial, pellee could stand he was returned to To consider the State’s contentions ade- Schweitzer, Justice Mitchell who required a quately requires recounting a detailed of second examination Dr. Messinger, per- litigation of years preceding both ten May, formed in report 1969. This substan- appeal underlying this and the facts this tially corroborated Messinger the earlier di- judicial protracted history. At the risk of agnosis and misplaced was also after the skeletal, repetition, provide some we first proceeding before Justice Schweitzer. Jus- chronological summary state tice Schweitzer then certifiеd as proceedings goal and federal with the of competent, and sentenced 6, him on June minimizing wrought by the confusion 1969, on the previous basis of his pleas of complex lengthy and record. guilty before Justice Nunez without inquir- arrest, After he was psychiatrical- ing into the validity of or factual basis for ly Messinger examined Dr. Emanuel the earlier pleas. The sentence was im- 1968, determining July, to aid posed after Suggs personally informed the be afforded Youthful would Offend- court that while he did not wish to with- report, arguably er treatment. This which previous pleas draw his guilty, and trial, to stand found was wished to accept sentence on those pleas, he Thus, subsequently revealed, lost. as none felt that he had incompetent been when he who judges state considered this ease originally pleaded guilty. A series of was aware of these conclusions. appeals and state collateral attacks fol- lowed, which are not particularly important 13, 1968, September On Emilio resolving appeal. this Supreme Court, Nunez the State New County, accepted Suggs’ pleas York February On Duffy guilty rape granted to one count of and one count of appellee’s petition for a writ of stay granted pending appeal.

1. A this evidentiary when he pleas hear- entered his corpus without an in any habeas case, contrary Judge Duffy’s prior Suggs was denied deci- ing. He concluded sion, 383, F.Supp. had the state courts ratified process of law because due pleas sentencing. People complete Suggs, full and never conducted 3063/68, 3063A/68, Nos. (N.Y. voluntariness, 2251/68 required by inquiry into County 3, Sup.Ct., 1975). filed Dec. Alabama, supra, decided four Boykin v. sentencing hearing days prior before Judge Duffy then set aside Justice Me- district court first Justice Schweitzer. findings lia’s ordered federal hearing when he entered Suggs incompetent found on the issue of competency. 422 F.Supp. 13,1968, as pleas 1042 (S.D.N.Y.1976). He again found by Justice determined Gold. judicially Suggs incompetent September 13, McCarthy under opinion, Thus the were void followed his earlier 390 F.Supp. writ, States, granting 430 F.Supp. v. United 394 U.S. S.Ct. Robinson, (1969), Pate v. L.Ed.2d 418 appeal This fоllowed. 15 L.Ed.2d 815 383 U.S. 86 S.Ct. The State contends first that Judge Duf- the 1969 sentenc- (1966). It then held that fy was by, bound or erred in not following, ing by Justice not a valid Schweitzer the decision of Justice Melia holding Suggs because no guilty plea Boy- for a substitute competent at the time his guilty plea. colloquy had been conducted at this kin that, The State contends second if Suggs later time. 390 incompetent at the time of his Septem- During pendency ap- the State’s 13, 1968, plea, ber he abandoned or waived decision, peal Judge Duffy’s from the two the incompetency claim at the sentencing Messinger reports proceeding were discovered. We va- when competent he was and is precluded therefore Judge Duffy’s from raising cated order remanded it in the corpus habeas proceedings evidentiary under hearing by case for an ei- Wain- the wright 72, Sykes, v. 433 U.S. 97 2497, S.Ct. the district state court or the court on ther (1977).2 53 L.Ed.2d 594 Finally, the State time Suggs’ competence at the argues appellee pleas ratified the entered, light newly were the time of sentencing not withdrawing which Messinger reports contra- discovered when given them opportunity.3 reports. We Lubin/Kadar left to dicted Judge Duffy’s discretion whether he or the The that, State does not contend if its the hearing. arguments insufficient, court would conduct are Judge Duffy’s LaVallee, v. findings ex rel. 523 factual clearly United States are erroneous. However, 1975). (2d of addressing F.2d 543 Cir. course arguments, State’s which we believe cannot remand, Duffy On ordered that a prevail, the validity district court’s in state hearing be for factual held court findings and decisions will become mani- state judges convenience of the who begin fest. We in-depth with an recitation required testify. F.Supp. 400 would be facts. (S.D.N.Y.1975). scope of this ref- 1366 dispute. is in erence II. HISTORY OF THE CASE Suggs’ compe- A full-blown hearing A. History Preindictment tency Anthony was conducted 1. Early History. Childhood Melia, Court, in the New Supreme York County, on and December November 17 Suggs evidently John was born in New He found was York in 1975. June of is black and has lived argues argument presented rejected The State that even under the This further 3. was to and Fay Noia, by-pass” language by Judge Duffy. (S.D.N.Y.), “deliberate 390 grounds, (2d vacated 372 U.S. 9 L.Ed.2d 837 on other S.Ct. 523 F.2d 539 Cir. 1975). (1963), incompetency the claim While it is unclear whether the State time, has abandoned. abandoned the at this claim we will nevertheless issue. address the his life. Much of death. In City York all of retribution he in New set fire to the dormitory, is unclear in the but did so personal history where it would be found and no one would incomplete record that ten be hurt. On lengthy but still anoth- er occasion he was packing found produced.4 dirt into legal proceedings years the exhaust of a truck used to transport reveals an unstable home vividly The record children with the aim of blowing up. it At environment, supervision parental devoid of point some he became convinced that he too appellee attention. From birth responsible for his mother’s death. his moth- back and forth between shuttled Wiltwyck, While still at approximately at and his “aunt.” er eleven, age he attempted suicide from Suggs was an habitual truant drinking mercury from a thermometer. school, wandering usually riding subways According to the Wiltwyck records as sub- parks. early childhood exhibited sequently set forth in the Rockland State several occasions he behavior. On unusual (Rockland) files, Hospital Suggs’ method of house, in the but newspapers set fire to establishing friendship was to engage in department the fire ordinarily notified conduct; assaultive there were numerous starting the His aunt shortly after blaze. hostility against acts of other student-in- fire to furniture in reported also that he set against mates as well as teachers. The home, parak- he once killed a her and that director, medical aware of the threat Suggs by pulling off the bird’s head. eet posed others, to himself and and unable to arrest delusional thinking, finally Institutionalization. suggested institutionalization at Rockland. Wiltwyck was referred to Suggs was admitted to Rockland in Au- Boys (Wiltwyck) age at the School gust of 1963. When he was initially exam- ten, originally by the Manhattan Children’s Katz, ined by psychiatrist, ap- delinquency petition following on a Court peared to have a normal intellectual level burglary implicat- incident in which he was with orientation memory intact. But petition changed neglect to a ed. Dr. Katz Suggs’ long also noted history of petition investigation uncovered the auditory hallucinations, and visual his tend- parental neglect. obvious ency obsessive, toward compulsive thinking problems His behavior continued unabat- with paranoid delusional and aspects and ed. When his mother died about a month impairment the severe Suggs’ of insight admission, Suggs evidently after his became judgment. and impression The initial of obsessed with the idea children in psychiatrist “[tjhere was that is much dormitory responsible his were for her schizophrenic of a youngster about this but following qualifica- occasion, Suggs, 4. The facts are with years stated another age, at three of conditionally. police tions and Most of them are wandering was found the streets sketchy drawn from records based on second- buy his mother sent him to the store to information, by Suggs, hand or facts furnished three, age some cookies. At the of he fell down reliability accurately conveying whose for in- flight a of stairs. This incident was followed ' questionable. formation is by history headshaking a of and nocturnal nose- bleeding. age joint At of four the first of 5. She came from North and Carolina was un- finger crushed, apparently his little was in a married at the time of his birth. She had other swing, amputated. approxi- and had to be At Suggs usually mentions two but has children — referred years mately age, appellee ten contracted many eight evidently as as —who acute rheumatic fever with carditis. illegitimate. were also Little else is known mother, except Suggs mother’s, about his that she died in 1961 lived with a friend of his person and was described his “aunt” as “a referred to in the records as both his aunt and appears mind like a guardian, whose was child It approximately [sic].” from 1954 until he possible that mother lived with his fa- Wiltwyck Boys was admitted to the School for period Suggs ther for a short of time after was years age. help, at ten While she tried to born. problems precluded alcoholic and marital her neglect apparent giving Suggs Parental from the first. upbringing from the kind of ex- seeing appellee aunt rеcalls on the floor of pected parents. of even remote foster eating his mother’s home a loaf of bread. On ‍‌‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌‍ble.” extremely emotionally deprived and She too felt he is that while “he functions any accept relationship, close now unable in superficially fashion,” a reasonable he is it.” although he verbalizes a desire for He “at a integration, borderline level of “may ultimately be a Suggs concluded may regress rather rapidly under repeated schizophrenic.” tension or additional trauma.” diag- Her nostic impression was “character disorder change in There little condi- with paranoid and (pas- borderline features long Not after he tion after admittance. sive-aggressive-aggressive type)” “po- changed at his ward was arrived Rockland tential schizophrenia.” for Because he was fearful of attacks other because emotional instability deprived home en- diagnosed having as patients. was later vironment, Bellevue recommended another “primary behavior disorders in children. stay at training school. Conduct disturbance.” thirteen, At age point already At the in he this left unclear record Thanksgiving holiday Rockland for the but becomes further It appears muddied. January, return. he Suggs did not was when was released from Warwick to City, New a psychi- aunt, found in York and after he attended Charles Evans placed atric examination on convales- Hughes High School for four or five status, cent so that he could reside his months. There his difficulties continued as attending neighborhood aunt while clinic. he apparently “kidnapped” a schoolmate for November, 1965, in discharged He was period of four hours. The authorities it when was learned that was in then sent him to Hampton State Training (Warwick). Training “Warwick” School School in April, 1967. The record of his Hampton behavior at and whether he was may have been sent to Warwick simply released escaped barren, it but having shot or stabbed his aunt’s hus- is known Hampton left April commitment, band. Incidental to this 1968, at age sixteen. predic- Ms. Barron’s July time was examinеd this tion of a Bellevue, “powderkeg” seems to have been pursuant to a apparently Chil- quite accurate. neglect peti- dren’s Court order on another tion, possibly because of his failure to placed clinic

attend aftercare when on B. History from May, convalescent status Rockland. He was Through Guilty Pleas of Before Justice “sunken, initially diagnosed, despite his de- Nunez attitude,” pressive psychotic “not Charges 1. The Psychiatric Exami- present,” though evidencing strong tend- by Messinger. nation ency A report by direction.7 later Barron, On May psychologist, Ms. referred arrested for feloniously assaulting a “powderkeg ready explode,” patrolman as about a on the feelings City College “inadequacy, helplessness campus, appellee with of where may depression.” predicted taught and karate.8 accurately Shortly She thereafter he that was charged “under severe stress” he would “be rapes numerous and rob appropriate unable institute limits on his beries allegedly in April committed and behavior, rage proba- May own and reactions are of 1968.9 Because he was under nine Suggs ag- warned, however, 7. that was The interviewer noted an ster.” The doctor that gressive, superficially strong possibility verbal adolescent who is a “[t]here . . . that However, “appears quite may develop paranoid intact. there is a into a schiz. [sj'c] deep underlying hopelessness sense of future.” boy. [history] gives every His HX him reason diagnostician Subsequently, Suggs consistently to feel he does.” The 8. what ob- claimed boy beginning patrolman served that “the is to utilize that had been abusive him. projective defense which increases [sic] [sic] rage purpose” charged Suggs serve him no 9. & and that “his One indictment in 18 counts confused,” thinking sodomy, rape, robbery can rather become but he and related crimes yet psychotic young- against did as “not see him as a April committed three women on years age teen of reached seventeen in ed that he is able to very function well —he appellee June entitled to con when he is psychologist so inclined.” The 1968— youthful sideration for offender concluded that projective treatment. “such material as officer, Reeves, have, does probation chief Mr. we suggest re a true thinking disorder, quested prepleading psychiatric psychosis. impresses a nor a examinat willful, defensive, hostile, ion,10 fairly negativistic, which was a routine practice para- noid, classify & anti-social. We would youthful time in offender cases. him as a narcissistic behavior disorder13 Suggs was examined first by psycholog [sic ] degree, poor prognosis extreme quite is ist,11 by Messinger, psychiatrist, then Dr. likely.” (Emphasis original.) Supreme Psychiatric at the Court Clinic on 17,1968, July deciding assist the court in history evidently A clinical sheet prepar- youthful offender treatment was Messinger July 17, 1968, ed Dr. shows appropriate.12 only superficial mention Suggs’ prior un- behavior. It stays usual refers psychological report important is Wiltwyck this, and Warwick. Beyond little since it was the basis for much of the psychiatric information is revealed subsequent psychiatric report of Dr. Mes- history. It indicates Suggs complained singer, discovery of which our caused “ ” ‘black-outs.’ quotes It also him as court to remand previous grant saying “[p]eople yell all the time.” report explains writ in this case. This Suggs’ inability to distinguish truth from Suggs “answers or not happens as he to feel fantasy is highlighted by much of the infor- moment, at the & refuses such as he tasks provided.14 mation he initially wishes. Much of the time angry he was diagnosed “Without Psychosis, patho- but complaining, reciting griev- various logic, unstable, emotionally with depressive ances, etc. He sat with his back turned paranoid trends.” part Ex. of the time.” Evi- [examiner] dently cooperation” his “variable made for On July Messinger, who “extreme swings” psychological on the tests evidently had before him none ranged superior.” which from “defective to compiled histories at other insti- The psychologist thought tutions, report submitted a formal potential “an intellectual well above aver- Supreme York, Court of the State of New age, but he never has submitted to the indicating [Suggs] “that psycho- without discipline learning, so that he reads and average intelligence.” sis and of The next spells at approximately grade a third paragraphs level.” four discuss the psychological Despite Suggs’ cooperation tests, lack of on most mentioning appellee’s composite I.Q. tests, of the Rorschach quote “demoristrat- the psychological report. May May police 1968. A second indict- had threatened to kill a officer charged robbery during ment him in five counts with the interview. against and related crimes committed two Thus, April May women on 30 and 1968. subsequently youthful denied of- pending against there was total of 23 counts Tierney July fender treatment him. 10. It is unclear whether the examination Augustus 13. Dr. F. Kinzel later testified in the solely conducted charge with reference to the assault evidentiary hearing, January federal habeas light or was ordered in of the subse- 21, 1977, entity that there is no such “known in quent rape any robbery charges and as well. psychology psychiatry.” or in event, psychiatric examinations were rape robbery conducted after the ments and indict- example, history 14. For down, sheet states reports handed were and the appellee high through attended charges. school the elev- show an awareness of these additional grade, played enth trumpet, ton, that he and basketball psy- 11. Mr. Reeves informed the director of the sang soprano” Hamp- that he “lead Suggs “expressed great chiatric clinic that a gave money. and that his real father him hostility aggressivity deal of and au- toward apparent psychiatric subsequent It is from his- thority figures and it would seem that he has probably tories that these facts untrue. are many problems.” emotional He also noted that 1, 1968, were as Messinger’s August placed own observations Men. On Dr. special follows: under mental health observation due to a displays injury” a rest- “self-inflicted and an defendant undated At interview jus- Suggs he tries to letter less, suggesting attitude as from the possibility truculent maladjust- and extreme of tify habitual suicide.16 his which he under ment on conditions According King, Warren A. psychi- vio- exprеsses and was born raised. atric social worker who conducted the men- his sister and his antipathies lent towards evaluation, tal health told him that father, authority paren- as well as all and attempted hang had himself to past his surrogate figures. Review of tal against parents “retaliate they because re- years earliest from his has shows that King fused to write or visit.” in noted his rebellious, indolent, been and intolerant report transfer, that before the he had gets restraint restriction. He any or warned the correction officers that “this both in out of institutions fights into and possibly inmate could be assaultive.” He “I need If I says, and don’t friends. a “long history stressed that they my make or later are friends sooner acting resulting out behavior and institu- enemies.” disturbed, quite tionalization” and “is personality Defendant’s classification deal great underlying hostility.” has as seems best described that of the Patho- This was not apparently incident known to logic Personality Group. Emotionally any or judge counsel before Type, depressive para- Unstable appellee appeared whom until hearing noid trends.15 Judge Duffy January, before in 1977. copy report The court’s of this apparently astray. It went was not the court file at of Guilty The Plea Before Justice Nu- of the plea proceedings time before nez. Justice Nunez. Its existence did not be- 1,1975, 13, 1968, come known until it April when was On Suggs, accompa- Attorney discovered an Assistant Gener- Legal lawyer, nied Aid Tuck- Donald appeal er, al while the first to this court from pleaded guilty before Justice Nunez to Duffy’s initial issuance of the writ one count rape each of in the degree first pending. of robbery degree the first in satis- faction of all counts of the indictments. It Purported Attempt. Suicide onis this that appellee’s date competency is question. Following Messinger’s Tucker, According examination to Mr. approximately out July came of his on September cell Brooklyn sent to the House of Detention demanding plead guilty charges Kinzel, evidentiary 15. Dr. at the habeas report federal It must further be stressed that this report: hеaring, criticized this appellee’s compe- did not address the issue of hearing tence to be tried. At the before Justice report, concern I had about [An]other Nunez, Melia it was characterized psychiatric is not a it examination. It presided Suggs' proceeding, who psychological has a review of the tests. It “only preliminary report,” relating pro- has some comments state, mental current priety him, II, of Youthful Offender treatment. See as he but there is observes no B, 3, here, history infra. and a examination basically history present has to have a 16. The letter stated: illness, illness, illness, past family child- Dear Mr. Officer’s history. hood It has have some current you you you if was me what will if do observation the recent mental state and you Sentence, facing knew life time behavior, current the recent and then you you Visiting Plus don’t have no one diagnosis findings. some based those Writing you you my What Will do. So I feel Really what this is is more of rather way Way. Easy best out is a I Will not tell cursory description part present you my Easy you Way What is but soon find words, mental state. In other it is not what out. generally complete psy- one would consider a chiatric examination. No matter admitting guilt you as to all of The Court: what do? fully and Suggs signed a statement to that them. The Defendant: No matter what I do. Mr. Tucker. effect for 17-18, People Plea v. Suggs, Minutes accepting pleas an extensive Prior 3063-68, 3063A-68 (N.Y.County Sup. Nos. held and colloquy was between Jus- Ct., 1968) (hereinafter Sept. Plea Min- Nunez, which to at length tice was alluded utes). Justice Nunez then accepted the by subsequent Justice Melia in the both pleas, question but continued to Suggs fur- evidentiary hearing court ther on his lack of remorse. It is at this Duffy opinions. Suggs in his related point critical in the record that the case family history, of his and school some takes on its full ramifications: process in the stated that he had been ex- Well, now, Suggs, you The Court: Mr. the psychiatric “right amined at clinic you going punished know that are to be response downstairs.”17 to the court’s crimes, you for these do not? questions, rape described one inci- robbery. Yes, and one Asked the dent reason The Defendant: sir. victim, said, rape he attacked the “I why Well, you The Court: don’t think it just why had it in mind.” When asked might help you you you if show that are threatened another woman and stole her sorry, you compassion show some for your Suggs replied, just “I purse, wanted to steal victims? it.” The Defendant: I tried that once. During the course of the colloquy, The Court: What? affirmatively questions answered concern- The Defendant: I tried that once. ing plea,18 the voluntariness of his subse- The- Court: You tried that once? Alabama,19 quently by Boykin mandated When was that? supra. Immediately accepting before following occurred: conversation The Defendant: When I was small. The sorry Court: You are not at all The happened you Court: What when you any things, did of these Mr. were small? Suggs? The Defendant: I lost a finger because Nothing sorry The Defendant: to be I tried. about. finger, The Court: You lost a you say? The Court: What? The Defendant: Part of it. The nothing Defendant: There is to be The Court: What happened then? sorry about. The Defendant: That’s I when did Nothing sorry The Court: about? to be something fight when I my had Well, your what would be opinion my sister. I wanted to show I mother you If something sorry to be about? did sorry. showing Instead of her I was what happened? what? If sorry, she cut me. something Defendant: If I did The Court: Who you, your tried cut nothing sorry about I did it there is to be your mother or sister? after I do it. specific rights then asked the court clerk discussion of the Justice Nunez constitutional undergone guilty, potential waived maxi- responded Suggs might there examination. The clerk mum sentence have to serve or possible record in the file. was no such sentence would minimum parole. have to be served unnecessary, however, said that he had consulted with his 18. Thus he at 386. It is rule on counsel, had heard the facts of the case as resolving appeal. this matter the issues on attorney court the district related to the 19. Rule 11 of the Federal Rules of Criminal voluntary guilty pleas were and not that his governs questioning Procedure such in the fed- promises. to threats or due Note, eral courts. See Rule and Collateral suggested district court has that the col- Plеas, (1977) Guilty Attack 86 Yale L.J. 1395 loquy sufficiently apprise Suggs did not Note, [hereinafter Attack]. Collateral plea, consequences of his since there was no My defendant’s answers were mother. unusual. Defendant: [t]he

The Messinger report only prelimi- was Id. at 19-20. nary Psychiatric because report the Clinic description the it was the Whether does not the time or the to facilities his fin- cutting off incident of his mother’s make kind complete the examination which was untrue from ger something — that can done Hospital. be at Bellevue histories, supra see note past other said that the defendant was without [It] remorse, general or his —Suggs’ lack of psychosis speak and did not to the issue demeanor, rang a with something bell Jus- of whether he was competent to be tried. immediately it He said: “Set tice Nunez. C. Psychiatric Examinations After and sentence Octo- investigation

down for the Plea: The Lubin Kadar Re- complete I psychiatric ber want a 31st. ports boy. report this And examination purpose wish to commit him on Bellevue, for that I A psychiatric at caseworker Mr. Jacoby, Hospital Suggs to Bellevue for exami- interviewed four my days motion after plea, 1968. His rec report.” Id. 20. Justice Nu- nation and ords appellee’s highly evidence disturbed “We explained appellee: are nez then state,21 noting Suggs sullen, was some you, have the look at Mr. going to doctors withdrawn, what and extremely infantile. help able Suggs. They may you be Suggs all eye avoided contact and showed way there something some because guilt no emotion or while relating facts the you, You seem to wrong apparently. the surrounding alleged crimes he commit you are at?” The be—whom mad defend- ted. underlinging “His hostility, con [sic] answered, one.” ant “No The court re- fusion, desorganization was manifest [sic] you see sponded: right, “All 31st. throught the course of interview.” [sic] [the] cooperate Try to doctors. See if “poor judgment His inability to control they help you.” can Id. agressive impulses were evidential [sic] [sic] later, evidentiary at the state hear- Years . . .." Nunez, ing, Suggs who Justice recalled later, dаys Two six days after the refer- appellee’s “unexpected respons- case due Nunez, ence to Bellevue Justice Suggs es,” that he had stipulation testified Lubin, was examined chief psychia- just the Bellevue not ordered examination Ward, trist the Bellevue Prison who sentencing pur- as an but all aid “for any knowledge without of the Messinger poses, including determination of report, history medical in the competent tried.”20 defendant be Hospital Rockland State records even he He also testified that had been attempt suicide six weeks before in report July Dr. Messinger’s aware of August, still Suggs concluded that might still have ordered the Belle- incompetent. His diagnosis tentative since vue examination from this first interview characterized psychiatric ordering argues exami- 20. The State examination so that sentencing,” plea “in indicated new nation was aid of as would have to be entered if Thus, entry. they subsequently competent. con- were in the court’s docket declared tend, Suggs’ following commitment Bellevue plea was not an indication that Justice past history, rambled on about his Nunez, prosecution thought defense or making inventing often little sense and stories. Rather, incompetent. nonchalantly State offered information concern- anyone Suggs incompe- argues, considered ing committed, had a murder which he said had tent, judge permitted entry would not have explained charges current were the pleas. Appellee argues that result of a misidentification and that he didn’t plea Justice lawyer, minutes as well as Nunez’ testimo- trust his characterized himself as a clearly ny dealer, show that Justice Nunez ordered the drug requested that his mother examination to determine whether (probably meaning his aunt unless he was un- explains delusion) time, be tried. help der a him this she set Nunez did not aside the not done before. so Lubin, conjunction in Kadar, “schizoid Dr. with Dr. condition as Suggs’ mental viewed Dr. Lubin features.”22 Suggs a third of paranoid made examination Oc- boy who “sees young a sullen Suggs as 21, 1968, report in a final resulting tober badly him a around circtumstances [sic] [in] whiсh, large part, in the court summarizes to him appeared It fashion.”23 distorted They preliminary reports. the two first a role in anger” played “petulance that prob- of behavior appellee’s history discuss plead guilty. He con- decision Suggs’ in various lems treatment reform- be noting could appellee that cluded that atory They institutions. note while de- vigorous with the of help claiming Bellevue, Suggs was innocence on this He later elaborated fense counsel.24 “ancillary indicate history his seems to that Me- hearing at the before Justice notation actually made and detailed specific he ad- then lia, indicating Suggs that while of criminal and in missions [his acts] trial, perhaps stand he could incompetent to the manner communicate that [to court] a state where cooperation “assisted to of be activities on bizarre these were based moti- might competent” then be he considered were vations and a function possibly “vigorous of his through the assistance” disorder.” The report mental concludes attorney. Suggs sees things “totally that in a distort- Septem- preliminary report second date A fashion,” psychosis ed has the of “schizo- 25, 1968, doctor’s earlier confirmed the ber phrenia, paranoid type,” and is “in such a impression was diagnosis.25 The doctor’s insanity incapable as to be schizophrenia, paranoid type. Again, understanding proceedings, the charge, or the world in Suggs noted that views Lubin making his fashion, defense.”26 totally distorted such that even “a most innocuous stimuli lead to believed the paranoid He

persecution.” found extant Incompeten- D. Judicial Determination of suspi- in Suggs’ reflected extreme delusions cy ciousness, negativism, inability to communi- On November Suggs was re- meaningfully predisposition and his cate turned to court violence, with the Lubin-Kadar as well as rationalizations re- rapes. The case port. the numerous came before Justice Gold probably subsequently explained persecution. at the state evi- the result of delusions of 22. dentiary hearing Melia that such before Justice Mr. Tucker informed the doctor that before diagnosis incompetency. Nunez, indicates Suggs given Justice detailed crimes, contrary account of the to his claims of Suggs this time claimed innocence 23. innocence made while at Bellevue. The attor- robbery rape charges on misidentifica- ney Suggs also revealed that the had told court caseworker, grounds, he the had told tion rapes response rape the were that to a of his police had arrested him but because revenge years July, sister earlier. We note that allegedly committed for the assault he 1968, Messinger report indicates that police City College. officer He said on the antipathies had “violent toward his sister.” pleaded advice on Mr. Tucker’s that minimizing this was his best chance of that finding appellee Tucker, however, incompetent 25. to stand tri- Mr. testified at the sentence. al, reject- hearing Dr. Lubin at this had insisted on time considered federal pleading guilty. accompanying possibility feigning See ed note & in- competency. infra. text may been based on This conclusion have statutory incompeten 26. The New York test of lucidity periods appellee observation cy trial to stand was then whether the defend adequately details of describe the could imbecility idiocy, ant is in “such state of or charged. Dr. Lubin with which he crimes insanity incapable understanding as to be however, be questioned, could charges against proceedings or the him actually would to understand that he made making . .” N.Y.Code defense prompted charges. him to face these This 662-b(1) (McKinney Supp.1970). § Crim.Proc. Tucker, attorney, Legal Aid visit Mr. version, The current § N.Y.Crim.Proc.Law 730.- thought activities criminal who (McKinney Supp.1976), became effective back means which he could strike were the society. Mr. that the Tucker told Dr. Lubin retaliatory, felt violent acts were court Although psychosis had a history Nunez. Jus- of long- than Justice rather maladjustment standing and antisocial ac- recent recollection has no tice Gold tivities, that he was never able to stipulation in form testified as hе proceeding, relationships close and that he showed sui- below, hearing evidentiary federal cidal and homicidal tendencies. The staff attorney the district indicate minutes diagnosis “Psychosis with Antisocial and waive a report to “confirm” chose Personality, Paranoid and Reactive Fea- Gold declared in- hearing.27 tures.” trial and him committed competent to stand of Men- the Commissioner custody An history “auto-anamnesis” or of Suggs 17, 1968, Hygiene. January conducted on tal revealed additional “fanciful” and “extraordinary” Sojourn at Matteawan Appellee explained E. stories. that he had never (though worked he had earlier stated 15, 1968, the Commissioner November On that he earned hundreds of dollars each Matteawan, a state Suggs to committed week as a musician teacher) and karate criminally A tenta- hospital insane. for money because his father sent him to make 15, 1968, con- November diagnosis on tive up for turning into mother an alco- Suggs was findings. Dr. Lubin’s firmed holic, thereby causing her death. Suggs paranoid schizophrenic, characterized as earlier had told Nunez that he had contin- His at Matteawan behavior type. not heard his father many years. from for thinking. On ad- to exhibit delusional ued Plea Minutes at 9. also revealed tense, “distant, dull, hos- he was mission that he had taken out a “contract” on his tile,” He “tendency with a to ramble.” said life, father’s and had he admitted com- many of his statements Bellevue mitting “get the offenses to off the streets” “lies,” feign mental illness so made were and to avoid a contract the Mafia had out hospital. sent to a Yet he would be on him. His birthdate now had become protest- reveal that he Bellevue records 1951; 1947 instead of hence he claimed to being hospitalized. He claimed that ed twenty-one be rather than the seventeen hallucinations, having had lied about but he indicated in prior medical records. He also shortly he demanded his own thereafter stated that he had been married for “quite room, might fearful that someone attack time,” got some along “very and well” with having made а lot him. He also boasted his wife and child. Letters written to his having money, deposited father’s his “wife” as well as to his aunt were not $5,000 he and for him when was born of his answered. $17,000. having left him He mother’s On January having after been off deny then admit and later that he would days, medication for fifteen Suggs was as- rapes committed and robberies. had sarcastic, saulted when he made racial re- of the drug with the use Subsequently, patients. marks to other significant More Librium, prob- “no management he became is Suggs’ statement to a doctor February lem,” now and silly.” his behavior “childish 22 that there though had been something put to assert that he He continued wrong arrived, with him when he he now in order sent act at Bellevue to be an felt that he was well. explained: He “I expressing toward hospital, anger while his convinced that I myself did something that hospital sent him to a lawyer who “had I didn’t do it.” doctor noted that “[h]e complained him.” He get rid of order referring pleading guilty to his in- seen each time he was of- frameup, dictment.” When asked knew if he that he as to income said, fered different information was convicted he “I don’t know [sic] my Matteawan came to original charge and bank accounts. was murder and they 18,1968, changed of December statutory rape.” the conclusion as [sic] hearing point erroneously court at one 27. The district believed that a had been conducted. F.Supp. at 386. 18, 1969, Suggs, pursuant seen amined special special March to a On court order of doctors, April “tried to con- Messinger. consultation two Dr. The lat- age,” ter’s one-page report May fuse the issue about his stated re- in Bellevue when he ferred to his had lied to the doctors first examination in July, 1968, when them that he did understand the the doctor not find [Suggs] told “did psy- chotic, money that he had but charges, emphasized considered him to be a case of (cid:127) dealing drugs. sociopathic severe personality in the bank from disorder.” being Dr. repeatedly Messinger referred to arrested on a Suggs “calm, now found co- murder, claiming innocence, operative, charge of cool calculating,” and “ori- City College ented in fight spheres and discussed the all . . an [with] who, said, police memory officer kicked him excellent both recent and re- groin telling in the him to mote events.” after stand He also found that Suggs “denies against Suggs, being any hallucinations, the wall. read a delusions or attorney which carefully letter the district indi- considers the various alternatives charged murder, open facing cated that he was not to him in his current charges.” go to a real hospital' Messinger again diagnosed said “I have tried to him “as be- problems.” ing of because I know I do have The the Pathologic Personality Group, his mental Emotionally Type, doctors concluded that condition paranoid Unstable with improved and depressive had but that remains “imma- tendencies.” ture, with insecure and unstable” a “tend- 6, 1969, G. The June Sentencing ency explosive slight provo- to reactions on cation” and that the ward he is con- “[o]n Suggs appeared with newly appointed very unpredictable.” sidered excitable counsel, Tobin, Mr. before Justice Schweit- zer on June The court clerk de- April again On he was seen clared proceeding an “arraign[ment] the same two who found him doctors more for sentence on your plea of composed. up He now made his mind guilty” to rape the crimes of and robbery, to return to court face criminal charges to degree. each in the first When asked him, against although he was then claiming the clerk could show legal that he did not commit crimes for which cause why judgment should not be pro- he had been indicted. He still insisted that him, against nounced he replied in the af- $25,- he had money in the bank —this time firmative, saying: “Judge, at that time ‍‌‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌‍I 000 which he inherited from his mother. wasn’t capable of understanding the case.” The superintendent Matteawan certified The sentencing minutes reveal that his April as 1969. A attorney had received an adjournment letter to the court that after Suggs’ said sometime earlier application to formalize an admission he symp- had shown continued pleas to withdraw the of guilty. However, toms of mental illness. Under treatment days two before the June 6 proceeding Mr. “psychotropic” drugs, his mental con- Tobin had informed Justice Schweitzer that improved dition had gradually point Suggs did not want to withdraw his plea where, earlier, unlike a months few he was willing accept and was sentence. Suggs give able to a coherent and relevant was then interrogated at the proceeding on leading account of the events his arrest. whether he wished to be “sentenced today” diagnosis “Psychosis remained or to have adjournment an of his sentence Personality, Antisocial Paranoid and Re- to confer attorney further with his about active Features.” withdrawing guilty pleas. He wished F. Competency Certification “to today,” be sentenced not to withdraw Report

Second Messinger pleas , not to have an ad- journment. as competent was certified on the reports sentenced, basis of the Matteawan by Justice based was on his guilty 13,1968, April pleas Schweitzer on He was reex- plea after a counsel, because years’ to five to fifteen entered when leniency by incompet counts, ent.30 He further each of the two determined that the imprisonment sen tencing before Justice Schweitzer concurrently. run He is was not a the sentences valid substitute for the void guilty pleas sentences in the New serving these still because the state court did not conduct an sentencing col prison system. York inquiry Suggs’ into whether previous void Schweitzer, none of the before Justice loquy (or plea it) his decision not to withdraw voluntariness, factual basis for questions voluntary, required by Boykin v. Ala comprehension of waiver of pleas, bama, supra; nor inquiry made into the Alabama, rights, required by Boykin v. su factual basis of the pleas, as mandated ex rel. Dunn v. pra, and United States sup United Casscles, States ex rel. Dunn v. CasscLes, (2d 1974), 494 F.2d 397 Cir. rejected district court also ra.31 asked. arguments State’s decision not withdraw his at sentencing effected H. Postconviction Relief a ratification of the invalid or a Corpus Relief. 1. Grant of Habeas objection waiver of his to their invalidity. unnecessary to recount all of the It 2. Discovery Messinger’s of Dr. proceedings Reports state and federal taken on and the Remand for an Evidentiary Hear- sentencing. They are Suggs’ behalf ing. opinions Duffy28 set forth in the it say and of this court.29 Suffice During pendency ap State’s

following various unsuccessful chal peal order, from Judge Duffy’s the two appellate in state lenges to his conviction Messinger reports were discovered. This proceedings, on Febru postconviction and court remanded the case for an evidentiary 25, 1975, Duffy ary Judge granted habeas hearing on the issue Suggs’ competency holding hearing, relief without a 390 plea at in view of the issue of fact by raised F.Supp. guilty pleas 383. He found the contradictory the conclusions reached in the entered before Justice Nunez on Messinger and Lubin-Kadar reports.32 523 13, 1968, McCarthy under v. void United F.2d at 542-43. Whether the evidentiary States, Robinson, supra, supra, hearing by and Pate v. was to be held the state or 383; (S.D.N. F.Supp. F.Supp. plea, proceeded 28. 390 400 1366 the earlier any the court without Y.1975); (S.D.N.Y.1976); F.Supp. inquiry 422 1042 origi- 430 further of its own into the F.Supp. (S.D.N.Y.1977). plea’s nal voluntariness or the voluntariness now-competent of a defendant’s ratification LaVallee, Suggs 29. United States ex rel. plea incompetent. of a made when he was (2d 1975). F.2d 539 Cir. inquiry petitioner No whatever was made of any during at time which he was holding, 30. In so the district court rélied on the any promises as to whether had been made judicial incompetency determination of ren- him, coerced, whether he had been wheth- dered Justice on Gold November acting er he was under his own free will Matteawan, Suggs’ subsequent commitment to respect plea 1968, either with 21, to his invalid report or his the October of Drs. Lubin and decision not to withdraw it. Suggs Kadar which concluded that was incom- Moreover, inquiry no petent, responses during was made of and the de “bizarre” fendant, competent, plea colloquy Sep- now that he was the Justice Nunez on as to proper whether there was a tember 1968. factual basis for plea. United States ex rel. Dunn v. Cass Contrary requirement the of an affirma- cles, (2d 1974); McCarthy 494 F.2d 397 Cir. showing explicit the tive on record of an waiver States, supra. v. United III, B, 1-2, rights, of constitutional see text at at 388-89. found; infra, the district court 32. We did not consider the district court’s rul sentencing Inspection of the minutes re- ings rejecting the State’s contentions complete any meaningful veals a inquiry absence of pleas had ratified his earlier or waived petitioner’s into the voluntariness of objections by failing to them to withdraw the plea. sentencing in- earlier quiry court’s sole given opportunity when the to do so question was directed to the of whether sentencing court. 523 F.2d at 542 n.1. petitioner wished to withdraw his earlier plea. Upon acquiescence the defendant’s purposes” left to the including district court was discretion competency, and that Id. Judge Duffy. 543.33 probably he would have ordered a more complete examination had he known hearing. a state Judge Duffy ordered see report, first Dr. Messinger II, B, 3, necessary witnesses reasoned: “Since Supreme supra; will include Justices Sandifer, and Justice who [State] testified Nunez, [including Court Justices Sandifer34 by stipulation that he had no knowledge of Gold], proper taking and forum for Messinger report the first when he ren- Supreme would be testimony their dered decision on December Court of the of New York.” State supra. note 34 State, See For the F.Supp. at 1367. lawyer, Tucker, Mr. testified that at 13, time of the September pleas, Evidentiary Hearing 3. The State thought competent, but had he Competency. report known of the Messinger he would order, Duffy’s Pursuant No- requested an additional ex- 1, 1975, hearing vember 17 and December allowing amination before plead. Melia, was held before Justice who assumed attorney assistant district testified that hold, hold, a full- that he was to and did nothing during colloquy made him evidentiary hearing on issue of fledged think incompetent. And Dr. Mes- plea.35 Suggs’ competency Counsel for singer testified as his July, and Kadar, Lubin who Suggs called Drs. May, reports the July, psy- Nunez, reports;36 testified on their chologist’s report on which the stipulation doctor who testified had ordered to Bellevue for “all sent relied.37 Justice Gold did not testify. competing called, two interests: 33. We had mind witnesses to be sanctioned the examina- policy requiring congressional exhaus- “the designated by of other tion not witnesses court, tion of available state remedies” equally important “the allegedly urged parties present all policy exhausting of not court, available evidence to the state and made prisoners who seek to their federal .assert response opinion the reference in of this rights.” Id. at 543. This court constitutional court, evidentiary which had ordered full impression due to an was under the mistaken hearing Suggs’ competency on the issue of record, omission in the companying see notes 42-43 & ac- plea, appellant Judge Duffy contends did infra, might appellee text request hearing determination state have exhausted his remedies. Suggs’ competency plea. of issue 6, 1973, Justice 34. On December Sandifer 36. Both doctors their reaffirmed conclusions of argument rejected Suggs’ made on a motion to incompetency explained and the factors which judgment sentencing vacate that the court was led to their Dr. Kadar conclusions. testified required inquire to into the voluntariness of having previously that did not recall seen People 3063/68, Suggs’ pleas. Suggs, v. Nos. July report. Messinger He could not 3063A/68, (N.Y.County Sup.Ct., filed 2251/68 opinion accuracy give an as to its because he 6, 1973). appeal Dec. to Leave was denied on way opinion not either could form an on 5, March 1974. any prior competency at time to his examina- Suggs. tion court, opin- 35. The district its November 16 ion, explained requested it had that the state Suggs Dr. Lubin testified that while he found testimony merely court to take to make and incompetent to from stand trial the first inter- “findings concerning knowledge narrow of the 1968, 19, onward, September view he could Messinger reports.” existence of the say definitively Suggs incompe- not that was F.Supp. at This 1043. construction of the order day plea. on the of his tent Judge Duffy’s specific is consistent with re- Messinger explained although Dr. that quest that state court ascertаin whether appellee psychologist uncooperative had found judges attorneys enumerated aware were time, type much of the was a “it willful reports. Messinger F.Supp. of the at 1367. negativism cooperate that led him According Judge Duffy, the state court's parts testing.” The doctor also noted Suggs competent determination that was Suggs cooperative during that was more beyond this “went far narrow matter referred Messinger’s Suggs. F.Supp. examination He clari- resolution.” 422 1044-45. 23, 1968, July diagnosis Suggs fied argues that not im- State the order did “sociopathic personality” amean which is con- pose decisionmaking limits on the court’s competent according “general psy- sidered suggested function. Because district court Similarly, Justice Melia dated Decem- concluded that Melia, opinion in an Justice Justice Nunez could not have considered compe- 3, 1975, found that ber Suggs incompetent: “Certainly an able and 13,1968, plead- when he September tent on jurist experienced Judge such as Nunez did People v. Nunez. guilty ed before not then believe the defendant to be incom- 3063/68, 3063A/68, supra, Nos. Suggs, petent else he would not have accepted the 2251/68, on the extensive at 29. He relied plea.” Id. The court noted “psychiat- con- as the tactical colloquy38 as well plea ric examinations are often made after a bargain39 as plea underlying siderations plea guilty prior to sentence as an aid Suggs “knew where he clear evidence guide to the court in imposition pleading doing” in was and what he was Id. at 5. Justice Melia did not sentence.” Id. at 17. He also discuss either Justice Nunez’ testimony that significant it considered he had ordered the Bellevue examination “extremely an able and ex- represented by for all purposes including a determination attorney,” id. who “found perienced competency, minutes contain- reason, during plea, to or no either ing Suggs’ story about his mother’s cutting the defendant was lead him to believe off finger, which prompted Justice Nu- counsel incompetent [although] agree did nez to order the psychiatric examination. an Nunez examination Nor did he find controlling Justice Gold’s an aid in imposing subsequent would be desirable as November finding of Id. at 29. No mention was incompetency.40 sentence.” testimony made of Tucker’s that he would And he Messinger’s relied on Dr. testimo- requested an examination had he been ny, which “seemed . . to be highly Messinger’s aware of Dr. July credible and reliable. The testimony of report. Drs. Kadar and Lubin was impres- not as “par- People 3063/68, chiatric Although Suggs, 3063A/68, definition.” Nos. anoid,” 2251/68, reality (N.Y.County he had Sup.Ct., not lost contact with at 29 filed Dec. psychotic. 1975). such an extent that he was Since any the doctor did not detect “divorce from 39. Justice Melia noted: reality,” competent. he found multiple The defendant faced count indict- explained appellee further that was not embracing many ments unrelated crimes under constant observation at the time of his judgment . . Would not examination, procedure unlike the at Bellevue. acceptance dictate the of the best offer in might Thus the doctor not have been aware of on-multiple order to avoid convictions counts psychotic episodes” “short or other unusual impact having with the added of the court Messinger behavior. Dr. did not consider his testimony heard live of victims? diagnosis reports inconsistent with the other Id. at 18. finding Suggs psychotic incompetent, be 40. Justice Melia stated: finding competency July cause his Court, opinion The District in its herein in necessarily did not mean that 389, said, p. 383 at “It is mani- 13, 1968; competent September “people on fest that where a defendant has been re- competent day who are found on one can be competency manded for a im- examination psychotic incompetent come at another time . . .." mediately pleading guilty, and is subse- quently trial, incompetent found to stand plea such a 38. The court stated: must be considered null and void plea impairment minutes of reflect no [T]he respectfully I submit that is neither memory. questions covering of many aspects He answered true as a matter of fact nor law. Indeed the life from birth of his to date of psychiatrists, Lubin, Drs. Kadar and called Messinger’s arrest and even recalled Dr. ex- by here, the defense concede that the defend- plea. some six weeks amination He very ant could well have been pleaded to which recalled the crimes plea. 13 when he entered his And in information connection there- volunteered Messinger compe- Dr. who found him to be capacity with. He demonstrated a to exer- July tent on 1968 conceded that the de- judgment. was able cise to assess incompetent fendant could have been ages of two of his victims. His answers were 9/13/68. relevant, illuminating. responsive, (emphasis original). Id. at 17

1109 Messinger’s petition42 Dr. July, at 28. Yet that had been sive.” Id. omitted from the subject appeal court;43 to certain short- record on the first report to this Nunez, (2) Judge Duffy see note comings revealed had referred the mat- II, B, 3, supra, subsequently ter to the state supra, respect court “out of for the accompa- notes 13-15 & convenience of the by Dr. Kinzel. See Justices in the State Moreover, system, essential,” the doctor had whose nying supra. testimony text not person,'John Suggs, “the out of no recollection of exhaustion considerations. testimony time of his at 1044. personally,” F.Supp. at the Furthermore, before Justice Melia.41 The district court then offered three prin only with Dr. began interviews Lubin six cipal why Suggs reasons was entitled to a days plea proceeding after the and involved First, federal evidentiary hearing. Judge a more extensive examination Duffy said that he had remanded the case than performed by Messinger. Dr. court state “for the mere taking of

Finally, step Justice Melia went one be- testimony to determine whether those in yond even a interpretation broad volved with the case knowledge had Duffy’s evidentiary order —that an hearing Messinger reports,” and that the findings of on competency be conducted. competency See note 35 and ratification exceeded the supra. He held that assuming Suggs’ scope 10d44-45; in- of his order. Id. at sеe note competency plea, the latter supra. Second, ratified his the district court found at the June sentenc- assumptions certain underlying Justice Me ing hearing. This matter previously had lia’s determination competency contra disposed contrary been of to the by Judge dicted the record.44 422 F.Supp. at 1045. Duffy. F.Supp. Third, 388-89. Judge Duffy determined that dispute

merits of the factual were not fully developed in the state hearing, 28 U.S.C. Judge Duffy Orders a Federal Evi- 2254(d)(1), pointing out the “glaring § omis dentiary Hearing. sion” in taking the testimony of Justice 16, 1976, Judge Duffy On November or- Gold who had Suggs incompetent declared evidentiary hearing dered federal on the after the proceeding. Id. Suggs’ competency plea. issue of Initially, he dismissed the 5. The Competency Federal Hearing. argument Suggs’ lay State’s relief appealing Justice Melia’s decision in the A hearing competency was (1) grounds: courts on two held on January 17 and 1977. The tran- already presented his claim of incompetency script and exhibits from the state hearing to the state courts in a coram second nobis were introduced as well as significant new recognition cy 41. This lack of does not seem re- issue had ever been raised in the state markable, given large people supra. courts. number of See note 33 However, Messinger examining in 1968. 44. The state court’s conclusion that the exami- subsequently Dr. Kinzel testified the federal nation ordered Justice Nunez was for sen- evidentiary hearing Messing- that he found Dr. tencing purposes only, contrary to Justice Nu- memory revelatory cursory er’s loss na- testimony, given example. nez’ own as one thorough psy- ture of the examination since a improperly Justice Melia also believed that brings chiatric examination out individual his- Judge Duffy opinion in his earlier had found psychiatrist’s tories that awaken the recollec- plea colloquy behavior bizarre at the tion. appellee’s because of lack of remorse. however, Judge Duffy, at 386. was dispute appeal. 42. The State not does this on referring Suggs’ being sorry. reasons for not psychiatric This distinction was critical due to holding 43. The testimony district court’s answered the before Justice Melia to the effect query posed prior appeal, this court in the often defendants exhibit lack of incompeten- F.2d at to whether remorse for their acts. nation 12, 1977,49 court.45 of held on January not before evidence Matteawan, which Suggs’ entire file from opinion it was the doctor’s that Suggs was hospitaliza- prior of his contained records suffering paranoid schizophrenia from his files Hospital, tion at Rockland State September not merely per- from a City Department of the New York from sonality disagreed disturbance. He Correction, 1968 file from the complete his Messinger’s July, report which he Clinic, and his file Psychiatric Bellevue product criticized as the of an incomplete Legal Society Aid were ‍‌‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌‍all admit- from examination, supra, see note 15 of the New York representative ted. A in gave it no medical or childhood City Department of Correction testified to history illness, or details past of ap- attempt August in Suggs’ suicide peared to be a “cursory description of part which, recalled, it will be occurred one week [Suggs’] present mental state.” He be- Messinger report the first was prepar- symptoms lieved that Suggs displayed addition, Mr. Tucker’s testimony ed. many examiners were signs of psy- something revealed that there was unusual chotic illness. Even the psychologist’s re- Suggs’ behavior on about port on which most Messinger’s of Dr. re- consistently in that had denied guilt day port his until the of his when he symptoms was based described para- “adamant” and “demanded” to became noid schizophrenia, rather than of a mere guilty.46 plead disorder, personality which is probably what psychologist meant by diagnosis. By illuminating far the most testimony Augustus Kinzel, note 13 & ap- accompanying supra. was that of Dr. F. See text pointed by psychia- the district court. A questioned He also the validity psy- of the credentials,47 impressive trist of his testimo- chological tests because Suggs had not co- upon relied ny heavily by Judge Duffy was operated. reaching his determination that Dr. Kinzel wаs aware of detention incompetent Septem- at the time of his attempt August, 1968, house suicide ber, pleas. reading While full prior few plea, weeks to his a fact unknown testimony necessary extensive doctor’s to the other psychiatrists who had testified appreciate why given it was so much before Justice Melia. He reflected that this weight, say suffice it to that Dr. Kinzel only “past one incident of a history of thoroughly all studied available data on suicidal behavior of a serious kind . . .” upon issue. Based various medical minutes, In reference to the Dr. Kinzel records48 unavailable either to Drs. Mes- Kadar, only not noted the bizarre singer, finger amputa- Lubin or the minutes of the guilty pleas, testimony, as well as Dr. exami- tion terming Kinzel’s it a “eonfabula- stipulated Suggs already forming It was that Justice had no Gold “false beliefs” any proceeding concerning dangers recollection to himself which were inaccurate. Suggs. Dr. Kinzel’s review of the Bellevue records July August from of 1965 indicated that Tucker, himself, protect 46. Mr. in order to had psychiatrists [Suggs] there “felt that sign admitting asked statement suffering simply from more than a social . guilt. Legal The statement was in the Aid file. disturbance; . conduct that he had symptoms suggestive . . which were psychiatrist He had been a staff paranoid schizophrenia.” but conclusive of States Medical United Center for Federal Pris- Missouri, Psy- Springfield, taught oners impressed by 49. The doctor was much School, chiatry Law and the at Columbia Law existing “major memory then deficit” of events articles, had authored numerous and was then occurring Hampton from the time he was at psychiatry in clinical an associate at Columbia until sometime after he arrived at Matteawan. University. possibility feigning, He discounted explained why “strongly” in detail felt that particularly those records are 48. Two of note- Suggs’ memory psychotic loss was caused worthy. He reviewed the records from Rock- “psychotic disorder. terms the condition Hospital, where land State had been amnesia.” years age, noting admitted twelve

lili though tion,”50 to the Dr. Messinger peti without “relevance issue indicаted that 23, tioner on hand,” impressed by Suggs’ competent July 1968, was but also was report that prepared was some “psychotic judgment” lack of as evidenced seven entered, pleas weeks before the were any failure to verbalize motivation or by his May reflected in the 1969 report, defend his acts. any attempt make Dr. Messinger acknowledged petitioner’s Suggs “had no serious opinion, the doctor’s psychotic which prompted condition the being charged awareness that he was with Matteawan commitment. He also con he very things serious that should defend possibility petitioner ceded the that may Suggs’ ability to de- himself with.” As to have been experiencing psychotic epi plea, the doctor scribe criminal acts said that psychotics can account literally for sode even at the time July ^[1968] being examination was conducted. The understanding why their conduct without only of competence other indicia is Mr. it, they they did whether should done and, testimony Tucker’s although an at they explain it should it. and whether torney’s opinion toas his client’s ability readily was ex- Counsel’s lack of awareness to understand the nature proceed of the easily are not able to plicable laymen since ings and to cooperate his defense is Suggs’ recognize psychosis. such a insis- States significant, United ex rel. Roth v. evidently is common pleading tence on Zelker, (2d cert. Cir.), F.2d among psychotic defendants. denied, U.S. S.Ct. with the Lubin-Kadar agreed Dr. Kinzel (1972), L.Ed.2d 340 . . . it is no diagnosis initial diagnosis as well as the means controlling, especially in light of Suggs’ re- Matteawan. He stressed Justice Nunez’s observation and reaction was a sulting incompetency result of a long- which, on my based reading of the episodic nature, lasting psychosis, not plea minutes, I agree. Kinzel’s testi noting patient that it unusual for a very mony relating to the account petition day incompetent to be one er’s loss of portion finger, and the that even though the next.51 He also felt it finger indications that was crushed fact, eight years given all the and then amputated, rather than chopped history, lengthy exegesis which even this mother, off as recalled by peti only upon, apply has touched could basic tioner, my bolsters conclusion in this re principles of to arrive at his psychiatry con- gard. clusion, “few psychiatrists with which Furthermore, above, coupled disagree,” psychotic would petitioner fact that was found to be probably when he entered the incompetent by only Dr. Lubin days six incompetent was then to stand trial. plea, after the which conclusion was con- held, time, the second Duffy firmed and corroborated Dr. Kadar April Suggs was incompetent later, some four weeks and that on the 13,1968. September He recounted much basis of the report, Lubin-Kadar without of the we have evidence which discussed objection by respondent, petitioner and then concluded: [by committed Matteawan evidence, Weighing all the Gold], conclu negates substantially any other petitioner sion is inescapable petitioner conclusion but that was indeed incompetent 1968. Al incompetent at time pleas. Kinzel, on, According early “really reality to Dr. confabulation is ness lost touch with an erroneous or loose association which meaningful way” is a Hampton when he was at sign psychosis thinking classic disorder part “psychotic in the latter This among schizophrenics. common through early state” continued late winter or spring, Matteawan, while at and corre- Suggs “actively psy- 51. The doctor did not find sponded period of time about which moment, appellee chotic” at but still exhib- Suggs currently could remember little. See signs schizophre- ited the “basic and latent supra. note 49 though nia.” The doctor felt there were signs aspect” “psychotic ill- federalism, reminded, the we need not He vacated be F.Supp. at 883-84. require “great weight,” to accord us id. at McCarthy v. the basis of guilty pleas on 36, findings, to a state court’s factual made Robinson, States, Pate v. supra, and United hearing. after a full and fair LaVallee v. because were null and void supra, they since Rose, 690, Delle 410 U.S. 93 S.Ct. implicitly adopt- incompetent; taken while (1973) (per curiam); L.Ed.2d 675 Townsend opinion, 390 of his first the conclusions ed Sain, v. 372 U.S. 83 S.Ct. 9 L.Ed.2d the rejected which State’s Casscles, (1963); Jennings No. 77- arguments; and is- and ratification waiver (2d 1977); 568 F.2d 232 & n. 1 Cir. corpus unless the writ of habeas sued 2254(d).53 28 U.S.C. § replead days.52 within 60 permitted to position may The State’s be broken down THE LAW OF First, III. DISCUSSION into four contentions. the State as- “contrary serts that it was to principles of Justice Melia’s Decision on A. Effect of federalism and comity” to ask the state Competency merely court to take testimony and make argues Duffy that State findings on whether certain key individuals “entirely disregarding” the state erred in knowledge had of the Messinger reports com that court’s determination requesting competency without the is- pleaded guilty, a determi petent when sue be resolved as well. Brief for Appel- what the claims reached after State nation Thus, argument lant at 37-38. the contin- evidentiary hearing,” and “am ues, was “a full while the district court itself had the Brief for supported]” by holding the record. ply option evidentiary hearing an Principles comity competency allowing or of Appellant at 34-35. the court (6) full, upon Suggs’ history applicant and the letters he did not receive a 52. Based fair, indicating adequate hearing court fear for wrote to the district in the State court persecution, Judge Duffy proceeding; his life and a belief or (7) applicant another examination of recommended current mental proceedings. that the was otherwise de- competency prior to new process nied due proceeding; of law in the State court (8) part or unless that of the record of the 2254(d) provides: 53. Section proceeding State court in which the determi- made, any proceeding perti- instituted in a Federal nation of such factual issue was by application sufficiency for a writ of habeas court an nent to a determination of the custody pursuant corpus by person support the evidence to such factual determi- court, judgment nation, produced provided of a State a determina- is herein- hearing after, on the merits of a factual tion after issue made court and the Federal on a considera- by competent a State court part tion of such of the record as a whole ap- jurisdiction proceeding in a to which concludes that such factual determination is plicant for the writ and the State or an offi- fairly supported by not And in an ing the record: agent parties, or thereof were evidenced cer by evidentiary hearing proceed- in the finding, opinion, written or other a written court, proof in the Federal when due indicia, adequate written shall be reliable made, factual such determination has been correct, applicant presumed unless the to be the existence of one or unless more of the appear, or shall establish or it shall otherwise respectively para- circumstances set forth in (7), inclusive, respondent shall admit— graphs (1) numbered dispute (1) that the merits of the factual by applicant, appears, shown otherwise hearing; court were not resolved the State respondent, or is admitted or unless (2) factfinding procedure em- pursuant provi- the court concludes adequate ployed by court the State paragraph (8) sions of numbered hearing; to afford a full and fair proceeding, record in State court con- (3) material facts were not ade- that the whole, fairly support sidered aas does not hearing; quately developed court at the State determination, such factual the burden shall jurisdiction (4) the State court lacked upon applicant rest to establish con- person subject or over the matter vincing evidence that the factual determina- proceeding; applicant in the State court tion the State court was erroneous. indigent (5) applicant was an that the 2254(d). 28 U.S.C. § court, deprivation of his constitu- the State appoint rep- right, counsel to failed to tional proceeding; State court resent him in the so, the mine the “narrow” limits which to do to be imposed tried, (3) on the court said it district explicit Nunez’ reсogni- function, decisionmaking see tion in the plea state court’s minutes that “[the doctors] Second, supra, impermissible. may help are be able to [Suggs] note 35 ... be- urges specified by that the limits cause there is something wrong ., State . . 1044-45, F.Supp. apparently.” 422 were Judge Duffy, Plea Minutes at 21. In addi- tion, afterthought because the referral was Justice an Melia’s conclusion that plea Third, supra. limited. note 35 impairment not so See minutes revealed no capacity made argues only judgment not to exercise the State or unusual behavior objection deciding to the state court’s flies in no the face of the impressions drawn competency, “vigorously” Nunez, but by the issue Justice who obviously in a litigated question. Finally, position the State better evaluate demeanor conclusion, that the district court’s contends at the time of the pleas. Justice Melia’s F.Supp. at the merits of the analyze 422 omission to this evidence was suffi- resolved, cient, dispute fully itself, were not 28 factual and of to raise (8) subsection 2254(d)(1),because Justice Gold did U.S.C. doubt whether the state § court finding of II, H, 4, testify, supra, see competency not errone- supported by the evidence. ous. Justice Melia’s conclusion that Justice need not settle the knotty

We issues Nunez would not have accepted Suggs’ plea view, by raised the State.54 In our if he did not believe Suggs to be competent findings supported Melia’s were by Justice is defective If, for another reason. as Jus- sufficiently the evidence was doubtful testified, tice Nunez Suggs’ commitment justify ordering evidentiary a further hear- purposes,” was “for all acceptance of the ing in the district court’s discretion under necessarily conditional, is, 2254(d)(8). Moreover, 28 there § U.S.C. subject to the subsequent condition of a inadequately were material facts developed finding of competency. And Justice Gold’s hearing. the state court 28 U.S.C. subsequent finding of incompetency to 2254(d)(3). § stand (acquiesced trial by State) obvi- ously related back to the date of pleas.

1. Lack of Evidence. The finding judicial was a determination that Suggs had been incоmpetent at previously We have least noted Justice since the day he was committed finding Melia’s that Justice Justice Nunez could not Nunez psychiatric examination. As incompetent, have believed “else he Judge Duffy stated: accepted plea.” People would not have 3063/68, 3063A/68, Suggs, supra, v. Nos. Such a report, and its subse- 2251/68, Melia, however, at 29. Justice quent did court, ratification attesting (1) not legal discuss the factual or the im to a defendant’s incompetency, must be pact colloquy concerning Suggs’ interpreted conclusively invalidating cutting finger mother prompted any plea off his that constitutes a voluntary re- Justice Nunez on his own motion linquishment to order a rights made at a time (2) psychiatric report, Justice Nunez’ testi when a suffering defendant is under such mony that he filed such an order to deter- a disability. note, however, presumption newly

54. We directed Messinger to the discovered re- ports. Judge Duffy correctness afforded court factual deter- chose to refer the matter to hearing court, minations rendered after a notwithstanding the mer- right the state traditionally applied himself, its has hearing to determinations hold for the convenience of made while the case is before judges the state courts required the state who would be in the first instance in testify. deference to the state’s Certainly different considerations from contrast, justice system. criminal the hear- underlying principles those the restraint ing original before Justice Melia was not an 2254(d) arise when § the district court has the trial, appeal pro- state court or coram nobis power issue, yet to determine the refrains from Rather, ceeding. response it was in to a refer- doing so. specifically ence the federal habeas court (citations omitted). experiencing at 387 See psychotic episodes during the States, (2d 531 F.2d Saddler v. United July, examination. The doctor fur- curiam) exam 1976) (per (retrospective Cir. ther revealed that he would have been competency mental ination into defendant’s aware this mental state unless manifest- plea granted ap years three earlier ed aggressive or other behavior that peti of 28 peal from denial U.S.C. § put would prison authorities on Hudson, tion); cf. 19 N.Y.2d People Bellevue, notice because unlike which pro- (1967) 225 N.E.2d 193 N.Y.S.2d observation, vided Supreme continuous verdict, (remanding pursuant to the Court Psychiatric Clinic operated on an out- recently Pate v. dictates of then decided patient Finally, basis. Melia accord- Robinson, supra, hearing for an evidentiary weight ed no reports Matteawan competency at the time of defendant’s Suggs’ after by rendered commitment Jus- trial, without need to a new the conduct Gold, which tice substantially corroborated guilt trial on or innocence if defendant findings of Drs. Lubin and Kadar. competent), found to have been cert. de Sain, As in supra, stated Townsend v. 372 nied, 90 L.Ed.2d U.S. S.Ct. (citations at U.S. S.Ct. at 759 omit- (1970). Justice commit Thus Gold’s ted): conclusively ment order invalidated This consistently Court has held that pleas. Yet Melia little Justice attached state factual not fairly determinations importance no to Justice Gold’s determina supported by the record cannot be conclu- supra. tion. note 40 See rights. sive federal . of . . Where findings Justice made other Melia the fundamental person liberties directly were also the rec- contradicted are to infringed, claimed have been we noting importance ord. While of Mr. carefully scrutinize the state-court rec- incompe- Tucker’s view that was not ord. tent, disregarded tes- Melia Tucker’s We just have before us a case. such timony that he would have requested psychiatric allowing examination before 2. Material Inadequately Facts Devel- plead had he known Mes- of the oped. singer report.55 Justice Melia also found Beyond the lack of evidence suffi Dr. Messinger’s testimony more “credible” support cient to findings, the state court “reliable” than of Drs. Lubin and several material facts adequately were not Kadar. diagnosis Yet Dr. Lubin’s first at developed hearing. Therefore, the state prepared only days plea six 2254(d)(3) Judge under 28 U.S.C. Duffy § question, Mеssinger and Dr. conceded the entitled reconsider the issue of com possibility Suggs’ condition could have petency. suicide attempt the Brook during deteriorated the seven be- weeks lyn Detention, apparent House of sui tween his day examination and the cide note and the Furthermore, correction officers’ plea proceeding. all doctors obser reported vation as in their agreed per- Lubin records were not that Drs. and Kadar had before the state court. thorough formed a than These events were more examination highly they A relevant since Messinger. copy Messing- did Dr. occurred after Messinger’s report report 23,1968, er even state Dr. July was not ordered Suggs’ prior pleas to the competency courts determine before Justice Nunez in Moreover, Messinger early stand Dr. ac- September, they trial. and since directly knowledged upon Suggs’ condition, could have been reflected mental subsequently attorney prerequisite conducting 55. It federal revealed at the was a such hearing although copies prepleading Nothing an the record indi- examination. youthful reports procedure prior in aid of offender such a cates that was followed usually July, Messinger were not to de- determinations sent examination. counsel, and his of the defendant fense consent

1H5 addition, rationality.56 and his some judgment events,” recollection of [has] court was not aware of the state . the “test must be whether he early which contained his Matteawan file has sufficient present ability to consult Hospi- history from Rockland State medical lawyer with a degree reasonable light records shed on the devel- tal. These of rational understanding —and Suggs’ mental condi- aspects of opmental he has a rational as well as factual under- tion, revealing complexity depth standing the proceedings against problems. emotional him.”57 Moreover, psychiatrist no state Dusky States, v. United 402, 402, 362 U.S. give information to hearing had sufficient 80 S.Ct. (1960). L.Ed.2d 824 opinion Suggs’ competence accurate an Finally, aftеr having given the date of the been question. How- an op- ever, Kinzel, hearing, the federal portunity to review the Legal Aid files in appellee’s and did focus on mental could hearing, federal Mr. Tucker offered ad- state as of 1968. With the ditional, important information. He testi- institutional and medical aid of all fied that Suggs had exhibited unusual be- records, of which had never been seen most havior on the day of his when Suggs doctors, the other Dr. Kinzel clarified an demanded plead guilty, though he had apparent- which aspect plea colloquy of the previously consistently asserted his inno- ly Justice Melia. He ex- had troubled cence. description plained appellee’s lucid of necessarily crimes did not the details his 3. Conclusion: No Abuse of Discretion. competency psychotics indicate because their conduct commonly can account for Considering the record as a whole comprehending significance. without its important and the evidence unavailable to Melia, guidance psy- Justice without the court, the state it cannot be said that Judge testimony point, on this had relied chiatric Duffy abused his discretion. We think that heavily Suggs’ descriptions on the crimes 2254(d)(3) (d)(8) under §§ was enti concluding Suggs competent. was tled to separate hold a hearing. That Supreme But the United Court has States Judge Duffy could have held the hearing in explained that instance, the first see note 54 supra, forti fies our view that enough independent it is not . . . that “the de- his examina place time and fendant oriented to tion of the evidence proper.58 [is] attempt mony psychiatric findings. reflects irrational permit- 56. A serious suicide He also thinking significance, psychiatric of considerable as Dr. experts express legal ted testified, especially light Kinzel findings. conclusions to be drawn from those suicidal, depressive past Katz, behavior. Psychiatrist Expert See J. The in Court — Advocate?, (unpub- Jan. at 6-10 purposes 57. For a discussion of the behind the paper presented University, lished at St. Louis competent requirement that defendants be Blinder, University); Why on file at Yale It’s trial, Note, Incompetency stand see to Stand Crazy Psychiatrist Insanity, for a to Talk About Trial, (1967). 81 Harv.L.Rev. 457-61 (1974); 23 Cath.U.L.Rev. 772-73 cf. Unit- Brawner, U.S.App.D.C. ed States v. 42- challenge the 58. The State does not correctness 43, 47-53, 969, 1010-11, 471 F.2d 1015-21 finding Suggs of the district court’s (1972) (en banc) J., (Bazelon, concurring and incompetent pleas at the time of his before dissenting) (insanity legal conclusion Justice Nunez. This conclusion seems almost psychiatrists testify). which should not given previous proceed- inevitable the record However, per- the Federal Rules of Evidence ings Judge Duffy, reasonably before the first experts testify mit testimony on the ultimate issue for complete psychiatric record and the factual resolution. Fed.R.Evid. psychiatrist complete 704. More- who of the first had that over, State, previously psychiatric which had asked the record available to him. If the he, psychiatrists legal judge other be at all it is that like so for their ultimate can faulted con- him, many including competency, object other courts before clusions on did not to Dr. here, testimony. state court did not limit Kinzel’s testi- pleas, Alabama, June as required by Boykin Ratification at v. Waiver and B. Sentencing supra, light of Gold’s finding Justice Suggs incompetent at the time of his reach we did not questions The pleas before Justice Nunez. To evaluate Judge Duf- discussed appeal but former validity sentencing proceeding, opinion, 390 fy below in his earlier secondary inquiry competency into unavoidably are now (S.D.N.Y.1975), is necessary,,, only at this is since was the question first this court. before whether, cor- time Boykin colloquy of federal habeas at which a purposes for occurred. relief, incom- waived his claim of Robinson, Pate v. pus v. supra, McCarthy by not pleas the time petency States, supra, us guilty United teach that a asserting it at the June adequately plea made while a defendant is incompetent is sentencing proceeding. second due process violates and is therefore void. previous pleas ratified logically any Boykin It follows that discus- Boykin after a Ala- accepted guilty, occurring sion while a is defendant incom- conducted while colloquy bama petent Thus, nullity. also a if Suggs had withdrawing his incompetent, not been plea, there would have by the given opportunity when pleas Boykin been no need to colloquy conduct That neither sentencing court. sentencing; would have been inferred from nor ratified could be waived rights informed of his Boykin at a time statement, made to sentencing when he could have understood and intelli- wasn’t “Judge, at that time I Schweitzer: gently waived them. Conversely, a deter- understanding the case.” The capable of mination of incompetency would entitle is, however, sen- subsequently fact Boykin colloquy at the time of him tencing gave opportunity court sentencing, unless his failure to withdraw counsel withdraw his and with guilty plea informing the court G, II, supra. do he did so. See present might that he incompetent have been 13, 1968, constituted a waiver of 1. Waiver. right. this Wainwright upon v. relies State Boykin Alabama, v. supra, imposes an Noia, 391, Fay Sykes, supra, and v. 372 U.S. duty judge affirmative trial 439, 822, the to con (1963), 9 L.Ed.2d 837 83 S.Ct. duct, not, sponte, an on proposition because did sua the record examina the proceeding, adequately the tion the sentencing at accused to ascertain that he incompetent the claim he was fully consequences assert60 understands the of a pleaded guilty, preclud the time he he is at guilty plea: waiver . “[A] [the] asserting from later in a habeas cor ed so important rights [protected federal by Boy ‍‌‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌‍ Thus, argues, proceeding. the pus State presumed] kin will not be from a silent considering the Judge Duffy erred even 243, record.” 395 at 89 U.S. S.Ct. at 1712 has competency argument issue. While this (footnote omitted). 1 C. Wright, See Fed appeal, scrutiny reveals its initial careful 172, 365, eral Practice and Procedure § facts of on the this case. deficiencies supp. (1969 Thus, 107 Supp.). & 1976 right defendant cannot waive his to attack throughout has these ha- claimed Boykin conviction rendered without the that he due proceedings beas was denied sentencing safeguards simply to he did process the court’s failure because not in inquire judge judge’s into thе voluntariness of his form the trial failure 1709, G, 238, supra, objection 274 59. 395 U.S. 89 S.Ct. 23 L.Ed.2d constituted a sufficient to (1969). preclude application principles. of waiver For purposes appeal, deciding of this without disposition In view of our of the State’s question, we will assume he did not ade- claim, unnecessary waiver it is to determine quately incompetency plea raise the issue of possible brief mention of his Justice before Schweitzer. incompetency, coupled subsequent de- his II, pleas to see cision not to move withdraw his

1117 Boykin colloquy. failed to conduct a Be- the error at the time his duties discharge to not obligated accused does cause was not then to re- was committed.61 that his insuring quest colloquy in order to seek habeas the burden bear the court. future, rests on that onus it is manifest voluntary; relief in required any to assert connected was not to the principles these Applying underlying timely claims of error until he simple matter. relatively is a hand facts at issue. Boykin raised the case, this facts of peculiar Because to in obligated sentencing court Subsequent sentencing pro plea to competency at into quire Boykin his ceeding, Suggs presented claim conducting a necessity of determine to the state courts without success.63 had no obli colloquy. Suggs Boykin second claim, did rejecting this Sandifer Justice Schweitzer apprise gation Suggs’ part failure on rely any Boy- comply responsibility court’s appropriate issue at an Boykin raise the undisputed that It is kin’s dictates. Having time under New York law. ex withdrawn his successfully could have remedies, he was hausted entitled incompetence. ground on the pursue the issue in the federal habeas However, accept proposition we cannot proceeding Judge Duffy. before See Allen so somehow nullified omission to do that his 77-2059, Court, v. 568 County No. F.2d con to contest a different ability later (2d 1977). 1001-1004 Cir. Therefore Estelle proc in a different deprivation stitutional Williams, v. 96 S.Ct. U.S. conclusion would lead to eeding.62 Such a (1976), Henderson, Francis v. L.Ed.2d that, while a defend nonsensical result 48 L.Ed.2d 149 U.S. S.Ct. Boy- ordinarily does not have to raise ant (1976), Wainwright Sykes, supra, v. are time of its commission error at kin Suggs fail inapposite. At no time did sentencing if an (here, proceeding) at the required issue when to do Boykin raise the re subsequently of this claim evaluation , Fay or federal law. so either state another constitu the need to consider veals extent, Noia, any, if it supra, to the time made at an earlier deprivation tional & Aleini Wainwright, see Cover survives while conducting plea proceedings (here, koff, Habeas Cor Dialectical Federalism: incompetent), defendant’s Court, 86 Yale L.J. pus and the secondary related error to assert the failure 1069-77, (1977), certainly does not add 1100-02 required time when he was not at a contention of waiver. weight to the State’s primary Boykin apprise the court of proceed of state bypass Here there was no his in a forfeiture of claim would result otherwise. ings, deliberate or Suggs’ assert both errors. incom right to convincing the ar Nor do we find pleaded was of no petence at the time Boykin colloquy the gument that because consequence to him until Justice Schweitzer 19, Attack, petition Note, supra prisoner’s for federal habeas relief note Collateral Cf. 61. 1396, sparsity guilty plea (highlighting alleging his was invalid because 1413-14 & n. 68 precluding inappropriateness promise upheld precedent of a sentence on waiver guilty pleas post-conviction grounds on attacks failure to file a written due to his grounds plea though given fails to re- where a defendant waiver an motion to withdraw the involuntary plea nature of his to opportunity by sentencing judge veal the to do so inquiry). judge of the Rule 11 trial at the time promise judge’s was called to the imposed), and sentence was cert. de attention Suggs’ objection to the focus on 62. Because we nied, 840, 80, 400 U.S. 91 S.Ct. 27 L.Ed.2d 74 Boykin sentencing judge make failure of inquiries, however, note, (1970). legal We that a claim of failure to ob rather than may incompetence to stand trial be raised in a previous sentencing ject court to the before 2255, proсeeding under 28 § collateral U.S.C. unnecessary pleas, to consider it is invalid having previously raised the issue on without habeas review is foreclosed federal States, g., appeal. E. v. United 565 Newfield timely gen raise a a defendant does when 203, 1977). (2d F.2d 207 Cir. incompetency claim the state courts. eral Follette, rel. Callahan v. United States ex Cf. supra. See note 34 1969) (denial (2d of a state F.2d 903 Cir. 418 1118 proceedings, Justice

normally plea occurs at void of any inquiry into either the voluntar unaware of the need iness Schweitzer or the factual basis of earlier colloquy Boykin pleas; conduct a second without only colloquy at sentence focused of his claims of in- Suggs’ informing him on the nonwithdrawal previous void of concomitant invalid competence plea. not, therefore, adequately before Justice Nunez. told the pleas informed of “the alternative courses of ac incompetent. court that he felt he had been open tion to” him at a time when he was Moreover, Justice had the rec- competent. Schweitzer North Alford, Carolina v. 400 only It revealed not 160, ord before him. Jus- U.S. 91 S.Ct. 27 L.Ed.2d 162 committing Suggs tice order (1970) alia, Nunez’ (citing, Boykin inter Alabama, v. because, paraphrase Bellevue Justice Nu- supra). Journet, Cf. United States v. 544 nez, 633, something wrong Suggs, (2d but 1976) (federal F.2d 636 Cir. require 11, also Justice Gold’s determination of incom- ments under Rule strictly enforced on petency based on the examination ordered direct criminal appeal); but cf. Del Vecchio by certainly States, Justice Nunez. This record v. United 556 F.2d (2d 110-11 should have alerted Justice 1977) (defendant Schweitzer to Cir. must show prejudice duty to determine the voluntariness of affecting fairness of proceedings or volun pleas. States, Cf. v. Saddler United tariness of plea to succeed in a collater (evidence supra, 531 F.2d at 87 al of mental attack based on a violation); Rule 11 incompetency presented States, Kloner v. sentencing United 535 F.2d 733- (2d Cir.) (not court but 34 every right not before court at suffi- waived must be “flurry cient warning flags” pursuant 11), to alert the enumerated to Rule cert. de nied, sentenсing 429 judge to the U.S. possibility that de- S.Ct. 50 L.Ed.2d (1976). may fendant incompetent been thus plead, requiring a mental examination argues, however, State fail- hearing and a on competency). ing to withdraw his invalid at sen- tencing, Suggs ratified them at a time 2. Ratification. competent,64 when he was and that argument ratified inquiry conducted Justice Nunez was previous pleas by failing void to with accordingly revivified at this later time. draw them at the sentencing proceeding disagree. We If Suggs did not have the higher stands on no footing than the capacity State’s to stand trial plead or to guilty65 Boykin Alabama, waiver claim. supra, September 13,1968, hardly could have judge establishes that a trial may not ac then comprehended the waiver Boy- of his cept a guilty plea “without an affirmative kin -protected rights constitutional to a trial showing it was intelli jury peers, of his [on record] confrontation of gent voluntary.” witnesses, U.S. at and to a privilege against com- self-incrimination, S.Ct. 1711. And United pulsory States ex rel. 395 U.S. at Casscles, Dunn v. supra, Thus, mandates an in S.Ct. there was no quiry into the factual basis underlying the “voluntary intelligent” waiver of these Here, plea. the sentencing minutes are rights de which ratified at the sentenc- pursued competence the claim in the state right stand trial and 64. to waive the incompe- counsel, and federal courts that he was also necessarily guaran to the former nor tent at time of sentence without success. teeing tion, however, ques the latter. We need not reach this parties since the have not ob competency It plead has been jected held that to statutory to the use of the New York test guilty greater competency must be than trial, to incompetency of to stand see note 26 requires stand trial since the former an under supra, throughout proceedings these to deter standing rights. g., Sieling of constitutional E. Suggs’ competency plead guilty. mine Eyman, (9th 1973). v. 478 F.2d 211 Cir. This Moreover, may drawing it be too fine a line to holding conclusion was based on the in West susceptible be of scientific evaluation. See Arizona, brook 384 U.S. 86 S.Ct. Note, Competence Guilty: to Pleаd A New (1966) (per curiam), 16 L.Ed.2d 429 which rec Standard, 1974 Duke L.J. ognized competence a distinction between insanity or as to be idiocy, imbecility incap in- appellee’s Because of ing proceeding. charges understanding against of colloquy able Boykin it is as if the competence, proceedings, making or the or of his him See Nunez never occurred. before . . . New York Code of defense States, Pate v. supra; McCarthy v. United b(1) (McKinney Supp. Crim.Proc. § Accordingly, there Robinson, supra. 662— 1970). (a) Suggs was when of plea never Boykin (b) of his informed competent and course, invariably are en- psychiatrists Of view: stated our Duffy well Judge rights. Yet, listed to aid in- such determinations. . . wish to . science, if, the trial court an inexact psychiatry is at best [S]hould an defendant newly-competent provide indeed, science, lacking the coherent it is a ratify his earlier opportunity necessary values proven underlying [void] set of must be complete inquiry knowledge a full and or com- plea, ultimate decisions on for be, later occasion suited, court on that should made It is as it petence. maladjustment of for the voluntariness illness or diagnoses to determine of ratification, Judges, voluntariness of on the of treatment. purposes once must itself, inquiry hand, provided further while set of other now-competent de- through develop- values again be made determinate proper simply there is a lack the legal principles, to whether ment of fendant as plea. meaningful standards in expertise apply basis for factual And, unfortunately, be- individual cases. F.Supp. at 389. of the norms in imprecision cause of the Proceedings Future C. State area, lost in the translation this much is Judge Duffy’s sugges We endorse judge jury, between psychiatrist from that, in view of tion, F.Supp. at problem decision. This is diagnosis and received from letters he paranoidal certain an individual is striking even more where re-ex appellee of be Suggs in March insanity. guilty by reason found not repleading. before competency amined There, psychiatric of a coherent absence fоund to be supra. If is note 52 See legal workable notion of volition and of appears likely given his incompetent, as results, repeatedly it has been standards illness, possibly now longstanding mental claimed, of ad hoc in the administration years ten behind by almost exacerbated justice. authori bars, state mental health then the year history Throughout his tortuous ten course, are, authorized to take what ties clinics, psychiatric in the in the courts and appropriate under Arti measures are ever victim of Suggs was—and still is—a John Law or Procedure 730 of the Criminal cle adequately deal with this inability our Hygiene Law. of the Mental Article 31 clear from the record dilemma. It is affirmed. Judgment destructive, and behavior is bizarre and had much more than that he has never KAUFMAN, Judge Chief R. IRVING reality. Perhaps Dr. Mes- grasp tenuous (concurring): singer’s of his condition assessment unstable, meticulous and depressive I concur in Oakes’s “emotionally correct; merely I would add opinion. perhaps paranoid well-reasoned trends” exposition of the un painstaking of his condition “schizo- diagnosis Lubin’s Suggs’s “coming Fortunately, details of we fortunate is more accurate. phrenia” highly sig emerging testimony. to an medical age” points need not reassess the law, Suggs’s com- namely, in the problem Judge Duffy, nificant who considered time, vagaries first relationship history between for the plete psychiatric troubled difficulties to redet- evaluation and the correct in his decision clearly incompetence. competence at Suggs’s the issue of judicial determinations ermine ample support findings before one and his Suggs’s plea, plea, time of At Yet, help but have one cannot to stand trial the record. incompetent could be deemed deciding in gnawing uncertainty, York, finding was re judicial in New proceed- years that civil commitment state of ten was in “such that he quired [a] whether both appropriate, be ings might have led psychiatrists

judges and night. journey into ‍‌‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌‍long day’s America STATES of

UNITED BAZZANO, “Johnny”, Jr. a/k/a

John “J”, Joseph Marco De a/k/a a/k/a

“Joe”, Joseph Yimin Charles a/k/a

“Bull”, Patrickkellington a/k/a Charles

“Chuck”, Francis Dattalo a/k/a

“Frank”, “Hog”, a/k/a Attilio Policastro Victory Top”, “Flat Primo Mollico

a/k/a “XG”, Matz John Franklin a/k/a

a/k/a

“Jack”, “Mayor”, a/k/a David Rankin “Chief”,

Guffey a/k/a a/k/a “Clairton

Chief”, Regis Ward a/k/a John “JP” “Ward”, Peter Paul Orsini

a/k/a a/k/a Orsi”,

“Pete”, “Pete Dominic a/k/a Paul

Serapiglia Constable, a/k/a Wilson Poljak Chief’, “Eliz C. a/k/a

Thomas

George Hines B. a/k/a “Eliz Constable”. BAZZANO,

Appeal of John in

No. 76-2584. GUFFEY,

Appeal of David Rankin

in No. 76-2585. WARD,

Appeal Regis of John in

No. 76-2586. ORSINI,

Appeal of Peter Paul

No. 76-2587.

Appeal POLJAK, of Thomas C.

No. 76-2588. MATZ,

Appeal of John Franklin

No. 76-2628.

Nos. 76-2584 to 76-2588 76-2628. Appeals, States Court of

United

Third Circuit.

Argued Sept. Dec.

Decided

Case Details

Case Name: John Suggs v. J. Edwin Lavallee, Superintendent, Clinton State Correctional Institution

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 27, 1978

Citation: 570 F.2d 1092

Docket Number: 137, Docket 77-2053

Court Abbreviation: 2d Cir.